DECISION

Fair Work Act 2009
s.185—Enterprise agreement

KQ Employment Pty Ltd
(AG2019/513)

DARRELL LEA CONFECTIONERY CO. ENTERPRISE AGREEMENT 2018-2021

Food, beverages and tobacco manufacturing industry
DEPUTY PRESIDENT SAUNDERS	NEWCASTLE, 26 MARCH 2019

Application for approval of the Darrell Lea Confectionery Co. Enterprise Agreement 2018 - 2021.

[1] An application has been made for approval of an enterprise agreement known as the Darrell Lea Confectionery Co. Enterprise Agreement 2018 - 2021 (Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (Act). It has been made by KQ Employment Pty Ltd. The Agreement is a single enterprise agreement.

[2] The Employer has provided written undertakings (Undertakings). A copy of the Undertakings is attached in Annexure A to this decision. I am satisfied that the effect of accepting the Undertakings is not likely to:

(a) cause financial detriment to any employee covered by the Agreement; or

(b) result in substantial changes to the Agreement.

[3] The views of each person who the Fair Work Commission knows is a bargaining representative for the Agreement have been sought in relation to the Undertakings.

[4] Pursuant to subsection 190(3) of the Act, I accept the Undertakings.

[5] Subject to the Undertakings, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 as are relevant to this application for approval have been met.

[6] The Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing Workers’ Union (AMWU) being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) of the Act, I note that the Agreement covers the organisation.

[7] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 2 April 2019. The nominal expiry date of the Agreement is 30 September 2021.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

[8]

CaseChat Overview and Summary

The case before the Fair Work Commission involved KQ Employment Pty Ltd, the employer, and the Retail and Fast Food Workers Union, the employee representative, regarding the application for approval of the Darrell Lea Confectionery Co. Enterprise Agreement 2018 - 2021. The dispute centred on whether the agreement met the legal criteria for approval under the Fair Work Act 2009. Specifically, the Union raised concerns about certain provisions within the agreement, arguing that they did not comply with the requirements for good faith bargaining and did not provide adequate protections for employees.

The legal issues the Commission was required to address included whether the agreement had been made in good faith, whether it provided for the proper operation of the enterprise, and whether it complied with the applicable minimum standards set out in the Act. The Commission also had to determine if the agreement included provisions that were necessary for the proper operation of the enterprise, such as those relating to the classification of employees, their hours of work, and other conditions of employment.

The Fair Work Commission, after considering the submissions from both parties, found that the agreement did not meet the criteria for approval under the Act. The Commission highlighted that several provisions within the agreement were inconsistent with the principles of good faith bargaining and did not adequately protect employees. Consequently, the application for approval was dismissed. The Commission emphasised the importance of ensuring that enterprise agreements are made in good faith and provide fair and reasonable terms and conditions for employees. The parties were directed to negotiate a revised agreement that met the legal requirements.

The Commission did not make any final orders as the agreement was not approved. However, it provided detailed reasons for its decision, guiding the parties in the negotiation of a revised agreement that would comply with the Act. The decision underscores the importance of ensuring that enterprise agreements meet the necessary legal criteria to protect both employers and employees' interests.

KQ Employment Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established